Stephen Henrick in Law Review on Rights of Students Accused of Sexual Assault

By May 17, 2013

In an article for the Northern Kentucky Law Review titled "A Hostile Environment for Student Defendants: Title IX and Sexual Assault on College Campuses" (PDF), former FIRE legal intern Stephen Henrick reviews the ways in which university adjudications of sexual assault are deeply flawed. Ultimately, Stephen comes to this conclusion: 

Quite simply, the law must recognize that a university (like any institution) has limits. Society must assign adjudication of sexual assault to civil and criminal court systems to ensure justice for all concerned.

Since the publication of the Departments of Justice and Education’s "blueprint" letter (PDF) in the University of Montana case last week, his observations on a disturbing trend ring even more true:

Over the years, OCR has issued a series of publications that escalate complainant rights and mandate new procedures for resolving complaints in a way that does not sufficiently protect the due process rights of falsely accused students.

Stephen further warns of the danger of tying student disciplinary hearings to federal funding:

The net effect of the administrative enforcement scheme is that schools have an incentive to convict anyone who is charged with sexual assault or rape as a matter of risk aversion for the institution. As noted, OCR has the authority to revoke a college’s federal funding if it finds the institution violated Title IX (although OCR has never exercised that power). For some schools, the sums at stake exceed half a billion dollars. Because OCR primarily cares about the complainant’s rights, as evidenced by its guidances and enforcement opinion letters, conviction carries a much lower risk of administrative enforcement than acquittal.

Stephen’s article is an important contribution to the field and adds to the discussion surrounding this crucial topic. You can read the full article on the Northern Kentucky Law Review website (PDF).

Cases: U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections